Category

Theft

Dec 04
5
stealing presents Christmas theft package

Don’t Be a Grinch: Punishments for Christmas Package Theft in Texas

By | Theft

stealing presents Christmas theft packageThroughout the year, package thefts occur on a fairly regular basis. But, as Christmas draws near and package delivery increases, so too do the thefts. While packages left on doorsteps and out in the open may seem to be easy targets for thieves, the consequences of getting caught are rarely considered. Would-be porch pirates should certainly think through their intended capers as many houses are equipped with doorbell cameras these days that capture clear video of any movement at or near the doorway.

What Can Happen to Individuals Who Steal Packages?

Grinchy thieves can face stiff penalties for stealing packages. In Texas, theft is classified by the amount of property that is stolen. Depending on the amount of the items stolen, a person caught stealing packages can face anywhere from a Class C misdemeanor punishable by a fine of up to $500 up to a First Degree Felony facing 99 years or life in the penitentiary. The latter would require someone stealing an item worth more than $300,000. While this may be unlikely, a thief wouldn’t know what he or she is stealing until he opens up that box. In addition, if committed within the same criminal episode, the aggregate amount of the items stolen could increase the punishment ranges for the offense as well.

Theft Of Mail In Texas

In 2019, the Texas legislature passed another law aimed at package theft. HB 37 makes it a crime to steal mail (including packages) from mailboxes or homes. The punishment range of this new law is linked to the amount of homes from which mail is taken. If a person takes packages from fewer than 10 homes, the crime is a Class A misdemeanor; 11-30 homes is a State Jail Felony; and 31+ homes is a 3rd Degree Felony. Of course, if the value of the package would make the offense a higher felony, then the state could also choose to file a case for the greater offense.

What Happens When Multiple Individuals Act as a Team to Steal Packages?

The consequences of people acting in a team to steal packages can increase the acts to the offense of Engaging in Organized Criminal Activity. In Texas, a person commits the offense of Engaging in Organized Criminal Activity if with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit theft. Tex. Penal Code 71.02. This increases the punishment one category higher than the offense originally committed. Most often, these types of cases are filed as 3rd degree felonies which carry a range of punishment of between 2-10 years in prison and up to a $10,000 fine.

Punishments for package theft can be harsh. While a person may be stealing property worth only a few dollars, they may also be stealing property worth thousands. The potential punishment a person faces for package theft may not deter thieves but there are certain other things that citizens can do to prevent these acts from occurring.

How to Prevent Package Thefts

The primary means by which package thefts are being prevented are with the increasing use of video surveillance. Individuals looking to steal packages off of front porches are becoming more and more aware of doorbell cameras and other small home surveillance cameras. The increased media coverage of these incidents and the increased capture of thieves by way of theses surveillance methods is enhancing deterrent efforts. YouTuber Mark Rober also continues to perfect his package theft glitter bomb, which could aid in the deterrence effort.

 

Despite the fact that security cameras are gaining in popularity (and the media reports on a regular basis of people being caught because of them), package thefts in Texas have not been eliminated. There are still those individuals that choose to ignore the possibility of getting caught and the potential consequences. And, for those folks, maybe it would help to reflect on the words of The Grinch, “Maybe Christmas doesn’t come from a store. Maybe Christmas…perhaps…means a little bit more!”

But for those individuals who persist and ignore the warnings and advice – and reflections from the Grinch – the BHW phone line is always open – just don’t say we never told you so!

Dec 03
0
Organized Retail Theft Lang

Organized Retail Theft: Does it Take Two to Tango? | Lang v. State (2018)

By | Theft

Organized Retail Theft LangThe Court of Criminal Appeals recently handed down an opinion on the applicability of Texas’ organized retail theft statute. The issue facing the court was whether the statute defining the offense of organized retail theft permits a conviction for ordinary shoplifting by a single actor rather than requiring a group or collaborative effort.

CCA Opinion: Lang v. State (Tex. Crim. App. 2018)

The Facts—Defendant Stole Merchandise from HEB and Was Convicted Under Texas’ Organized Retail Theft Statue.

Defendant was shopping at HEB when an employee noticed her placing merchandise into reusable shopping bags. Some of the bags were inside of Defendant’s cart and one was tied to the side of her cart. The employee thought this behavior was unusual, so she kept an eye on Defendant. When Defendant went to check out, the employee observed her place all but one of the reusable bags onto the conveyor belt—leaving the bag that was tied to the side of the cart untouched. After paying, Defendant began to leave the store. Defendant was subsequently stopped by employees and questioned about the bag that was tied to her cart, which was full of unpaid merchandise. The unpaid items totaled $565.59, whereas the paid-for merchandise totaled only $262.17. At that time, the store called the police and Defendant was eventually arrested, charged, and convicted of organized retail theft.

Defendant appealed her conviction arguing that the evidence was legally insufficient to support her conviction. More specifically, Defendant claimed that the offense of “organized retail theft” could not be committed by a single actor because the statute requires group action or collaborative effort. The court of appeals rejected this argument for the reasons listed below.

Court of Appeals Affirms the Trial Court’s Decision—Claiming that Organized Retail Theft Does Not Require Multiple Actors.

In making their decision the court of appeals looked to the statute’s language, which provides that a person commits an offense if she “intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, stores, barters, sells, or disposes of: (1) stolen retail merchandise; or (2) merchandise explicitly represented to the person as being stolen retail merchandise.” The court contended that nowhere in the statutory language was there explicit terms requiring group behavior. As a result, the court held that the language was not ambiguous and used plain meaning to interpret the statue.

Using dictionary definitions, the court concluded that the statutory terms “conducts, promotes, or facilitates,” did not require multiple actors. The court also explained that reading those statutory terms in context, established that what is conducted, promoted, or facilitated is an “activity,” not another person. Thus, “leaving the store after stealing the retail merchandise” was sufficient activity to meet the elements required by the statute. Accordingly, the court of appeals upheld the defendant’s conviction and another appeal ensued.

Court of Criminal Appeals Reverses and Remands Case—Determining that Organized Retail Theft Requires Multiple Actors.

On appeal Defendant maintained that the offense of organized retail theft could not be committed by a single actor. She did not dispute the facts, rather, as a matter of law, she disputed whether the facts were adequate to establish the offense of organized retail theft. To evaluate this argument the Court of Criminal Appeals analyzed the statute’s language and compared it with the court of appeals’ analysis and Defendant’s argument. In doing so, the Court determined that the language could reasonably be interpreted in more than one way, and therefore, extra-textual sources, such as legislative history must be considered.

To make this determination the Court looked at the statute’s use of the past participle of steal (e.g., “stolen”). The court explained that use of “stolen” indicated that the “activity” covered by the statute takes place with respect to items that have already been stolen. Thus, the question then becomes “what type of ‘activity’ suffices to satisfy the statute’s requirements.” “Is it enough, as the court of appeals suggested, for a person to shoplift items of retail merchandise and then attempt to leave the store with the stolen items, thereby conducting an activity (leaving the store) in which the person possesses the retail merchandise she has just stolen?” Or, as Defendant suggested, does the statute require proof of some activity distinct from the type of conduct associated with shoplifting? In other words, “does the statute require proof of something more than the mere continued possession of the stolen retail merchandise during an attempt to leave the store?” Not immediately knowing the answer to these two reasonable interpretations, the Court decided it had to look to legislative history to help find the right answer.

After examining the statute’s legislative history, the Court found that the organized retail theft statute was intended to reach conduct distinct from that of ordinary shoplifting. To support its decision, the Court cited the statute’s bill analysis and a senate research report. Both pieces of legislative history similarly stated that organized retail theft is a highly organized criminal activity, dependent on multiple actors, and organized by a central figure. Further, the sources stated that organized retail theft is distinct from ordinary shoplifting in that it involves professional theft rings that move quickly across state lines in order to steal and move large amounts of merchandise—requirements that are clearly not present during ordinary shoplifting.

As such, when considering the legislative history in conjunction with the ambiguous statutory language, the Court concluded that it supports the notion that the organized retail theft statute was not intended to apply to the conduct of an ordinary shoplifter acting alone but rather to multiple actors involved in highly organized theft rings. Thus, the Court reversed and remanded the case.

Keller, P.J., filed a concurring opinion.

Yeary, J., filed a dissenting opinion.

Sep 27
2
Shoplifting Before Leaving the Store

Can Police Arrest a Person for Shoplifting Before They Leave the Store?

By | Theft

Shoplifting Before Leaving the StoreThe Court of Criminal Appeals recently handed down a case regarding a police officer’s findings of reasonable suspicion and probable cause. The issue was whether an officer had probable cause to arrest a customer for theft from a store before she actually exited the store and when she claimed, after being confronted by the officer, that she was going to pay for the items shad had placed in her purse.

State v. Ford, Court of Criminal Appeals (2017)

The Facts—What Happened?

A Corpus Christi Police Department Officer responded to a report regarding a customer in a Dollar General Store concealing store merchandise in her purse and jacket. Upon arriving at the store, the responding officer met with the employee and was given a description of the customer.

The police officer approached a customer matching the employee’s description, identified later as Ford, and informed her that she had been seen concealing merchandise in her purse. Ford replied that she was not done shopping and had intended to pay for the items. However, the officer noticed that Ford had a shopping cart with store items that were not in her purse. The purse was covered by a jacket, which the officer picked up, and discovered that the purse was fully zipped up and full of merchandise. Upon removing the store items from her purse, the officer discovered six small baggies of methamphetamine and two pills.

The State charged Ford with theft over $50 and possession of controlled substances. Ford was subsequently indicted for possession of methamphetamine.

Defendant’s Motion to Suppress—The Trial Court Granted Defendant’s Motion and Determined No Reasonable Suspicion or Probable Cause

The drugs found on the defendant were discovered during a theft investigation. The defendant filed a motion to suppress the drugs. The trial court granted the motion to suppress.

At the suppression hearing, the trial court acknowledged that a theft could be complete without the physical removal of the property; however, the court also observed that the defendant never tried to leave the store with the merchandise and “was still shopping.” Further, the court determined that there was insufficient evidence that the defendant intended to steal the merchandise because she did not attempt to leave the store, she did not run or try to conceal anything when approached by the officer, and she stated that she intended to pay for the merchandise.

The trial court concluded that the “officer acted prematurely” in approaching the defendant and asking questions about the merchandise and that inferring an intent to steal was “too big a leap at [that] point.” The trail court questioned the reliability of the information provided during the suppression hearing as it all came from reports by the store employee and the police officer, both of whom were not at the suppression hearing to substantiate the information.

The Court of Appeals Agreed with the Defendant and the State—Holding that the Officer Had Reasonable Suspicion, but Not Probable Cause

On appeal, the State argued that the conversation between the police officer and the defendant was part of a consensual encounter and that the totality of the circumstances gave rise to probable cause to arrest the defendant.

The court of appeals rejected the State’s first claim that the conversation was part of a consensual encounter, but agreed with the State that the police officer had reasonable suspicion to stop the defendant to ask her questions. The court of appeals held that the trial court erred in concluding that the officer lacked reasonable suspicion to conduct a stop.

The court of appeals held that the trial court was within its discretion when it concluded that the State failed to meet its burden of proof establishing probable cause to arrest. This discretion was used when determining that the evidence used by the State was “questionable” with no one able to corroborate the information provided.

The Court of Criminal Appeals Reversed the COA Judgment and Determined that an Officer has Probable Cause to Arrest for Theft Even Before the Defendant Exits the Store

The Court of Criminal Appeals recognized that both the trial court and the court of appeals recognized that it was not necessary for the defendant to take the merchandise out of the store for her to commit theft. Nevertheless, both of the lower courts erred in concluding that the officer did not have probable cause to believe that the defendant intended to steal the items.

The court explained that the officer had knowledge of at least four undisputed facts supporting the idea that the defendant intended to steal: (1) the store employee reported that the defendant was concealing items in her purse; (2) the defendant admitted to the officer that she had concealed items in her purse; (3) the shopping cart had items from the store that were not in her purse; and (4) the defendant’s jacket was covering her purse. The fact that the defendant placed some items in her shopping cart but concealed others in her purse caused the arresting officer to believe the defendant was intending to steal the concealed items.

The court supported this argument by referring to Groomes v. United States, 155 A.2d 73, 75 (D.C. App. 1959), in which the District of Columbia Court of Appeals heard a case—similar to this one—and concluded that once items are removed from the shelf and concealed or put in a convenient place for removal, the elements of a taking and appropriation are satisfied. Further, the police officer could reasonably believe that the placement of the jacket on top of the bag was used to further conceal items.

The court also addressed the lower courts’ concern of reliability of the reports by the employee and the officer. The court notes that the employee’s report was then corroborated by the admission of the defendant, and further, that the employee served as a citizen informant who the officer could reasonably rely on as one of several factors for determining probable cause.

Here, the Court determined that the lower courts erred in concluding that the police officer lacked probable cause to arrest the defendant. Accordingly, the Court reversed the judgments of the courts below.

See Judge Walker’s Dissenting Opinion

May 05
3
Police Knock and Talk Danhach 2016

Knock and Talk Interview Still a Lawful Way for Police to Enter a Premises

By | Theft

Police Knock and Talk Danhach 2016“Knock, knock!”

“Who is there?”

“The police and the FBI, may we come in please?”

There is a knock at the door. You look out your peep hole and see law enforcement. Do you have to open your door? If you open your door, do you have to let them in? What if they don’t have a warrant, but ask nicely and start talking to you? If you give consent to law enforcement to enter your home, can evidence seized be used against you in court later on?

This article is a summary of United States v. Danhach, a case recently decided in the US Court of Appeals for the 5th Circuit.

Evidence is Seized After Police Politely Ask If They Can Come Inside.

The Houston Police Department and the FBI had been investigating Sameh Danhach and his business associate for possible involvement in organized retail theft. As part of the investigation, law enforcement began surveilling a warehouse that Danhach had been seen entering on multiple occasions and to which a car used in stealing over-the-counter drugs and expensive baby formula had been linked. After several weeks of surveillance, law enforcement approached the warehouse and knocked on the door. Danhach’s business associate permitted the officers to enter, as surveillance cameras rolled capturing the entire conversation.

The officers saw trash bags full of merchandise and other indicators of stolen goods out in the open. Citing this evidence in a probable cause affidavit, law enforcement obtained a search warrant and seized the evidence for trial. Danhach was charged with conspiracy to transport stolen goods in interstate commerce and also with aiding and abetting the interstate transportation of stolen OTC medication and baby formula, violations of 18 U.S.C. § 371 and 18 U.S.C. § 2314, among other charges.

At trial, the jury found Danhach guilty on all counts and the judge sentenced him to 151 months in prison and a three year term of supervised release. Danhach appealed.

The Knock and Talk Procedure, the Plain View Doctrine and Consent Collide.

Courts have recognized the “knock and talk” technique as “a reasonable investigative tool when officers seek to gain an occupant’s consent to search or when officers reasonably suspect criminal activity.” United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001); Kentucky v. King, 563 U.S. 452, 469 (2011). Evidence may be cited in support of a search warrant if (1) law enforcement entered the area where the item was located; (2) the item was in plain view; (3) the incriminating nature of the item was immediately apparent; and (4) law enforcement had a lawful right of access to the item.” United States v. Jackson, 569 F. 3d 236, 242 (5th Cir. 2010).

However, if for some reason the “plain view” doctrine does not stand up to the facts of a case, then “consent to enter” may be an alternative argument, but “the government must demonstrate that there was effective consent that was given voluntarily by a party with actual or apparent authority.” United States v. Scroggins, 599 F.3d 433, 440 (5th Cir. 2010).

The Big Issue Before the Fifth Circuit was Whether Officers Lawfully Entered and Remained Inside of Danhach’s Warehouse While Conducting a “Knock and Talk” Interview.

Here, the Fifth Circuit agreed with the district court and affirmed judgment and sentencing, holding that law enforcement permissibly used the knock and talk technique. The Court pointed out that video surveillance is consistent with law enforcement’s account that consent was obtained before entering. Even after law enforcement entered, Danhach’s business associate gave them permission to walk around the warehouse. The stolen goods were in plain view and were immediately apparent and indicative of criminal activity. Based on this series of events, “even if any evidence cited in the warrant…was not covered by the plain-view doctrine, the record supports the conclusion that the agents asked for and received consent for a full search of the warehouse.” Danhach did not offer any evidence to show that the consent was coerced in any manner, nor did he offer any evidence that the items seized were not in plain view.

Consent to Search + Items of Criminality in Plain View = Probable Cause to Obtain a Warrant

In sum, law enforcement may ask to enter a premises without a warrant and if consent is obtained from a person who is “in charge” or who looks to be “in charge,” then that consent is sufficient according to the Fifth Circuit, citing previous cases. Once lawfully inside a dwelling or premises, if law enforcement officers see, in plain view, objects that are linked or are seemingly linked to a crime, then those items may be the basis of a warrant to seize the items and to conduct an even more extensive search.

Mar 29
1
Jury Unanimity Aggregate Theft Texas

What is Jury Unanimity for Aggregate Theft Cases?

By | Jury Trial, Theft

Jury Unanimity Aggregate Theft TexasJury unanimity is required in every jury trial, whether it be felony or misdemeanor. This means that the jury must unanimously agree that the State has proven or failed to prove all elements of an offense beyond a reasonable doubt. If a jury cannot reach a unanimous verdict of guilty or not guilty, then the judge will declare a mistrial. With some offenses, however, it can be a little unclear as to what jury unanimity actually requires. This is specifically so with aggregated theft cases.

What Is Aggregate Theft?

Aggregate theft is an offense where two or more thefts were committed “pursuant to one scheme or continuing course of conduct” and the amounts combined determine the grade of the offense. Tex. Penal Code §31.09. Under Section 31.09, aggregate theft may be and often is considered as one offense. Even though it is considered one offense, each individual underlying theft act (where the amounts are aggregated) is considered an element. The Court of Criminal Appeals of Texas has held that for evidence to be sufficient the state must prove beyond a reasonable doubt that the defendant unlawfully appropriated “enough property to meet the aggregated value alleged.” The state is not required to prove each underlying appropriation. However, the Court, until recently has left one question unanswered: Does the jury have to unanimously agree on all underlying theft transactions?  Meaning, if the defendant is alleged to have committed 10 separate theft acts (pursuant to a common scheme), do the jury have to agree on each, or some, or none?

Kent v. State—What is the Jury Unanimity requirement in Aggregate Theft cases?

Until recently there had been no holding by the Court of Criminal Appeals of Texas on whether jurors are required to unanimously agree on each underlying transaction that is used to comprise an aggregated theft charge. In Kent v. State the Court finally addressed this exact question.

See the full CCA opinion in Kent..

Kent was a mortgage broker indicted for theft from four complainants in an amount exceeding $200,000. The thefts were alleged to have occurred over a period of time and pursuant to one scheme or continuing course of conduct. At trial, the defense requested a paragraph in the jury instructions that outlined each individual theft allegation and called for a unanimous verdict on each. The trial judge denied the defense request to include this paragraph.  The jury found Kent guilty of aggregate theft. On appeal, the Kent complained that the trial judge erred by refusing to include his requested paragraph in the jury instructions.  The appellate court reversed and remanded the case for a new trial, holding that the jury should have been instructed that they must unanimously agree beyond a reasonable doubt on each underlying transaction used to comprise an aggregate theft charge.

The State appealed to the Court of Criminal Appeals of Texas to determine whether this was correct. Reversing the lower courts holding, the CCA held that for an aggregated-theft case,

unanimity requires that the jurors agree that the threshold amount has been reached and that all the elements are proven for each specific instance of theft that the individual juror believes to have occurred. Every instance of theft need not be unanimously agreed upon by the jury.

In other words, it is only required that the jurors unanimously agree that two or more thefts pursuant to a common scheme, when combined, exceeded the threshold amount beyond a reasonable doubt, not that they unanimously agree on exactly which thefts were comprised to reach that amount.

Takeaway: When facing aggregated theft charges it is important to know that the jury does not have to unanimously agree that each underlying theft alleged in the indictment has been proven beyond a reasonable doubt. Bottom line, it’s the aggregated amount that matters. This is only a brief explanation of how the jury unanimity requirement plays a role in a case and if you should have any more questions contact our Fort Worth criminal defense team.

Feb 29
3
Craigslist Crimes in Texas

Texas’ Online Crime Marketplace: Craigslist Crimes, Craigslist Stings, and Craigslist Thefts

By | Computer Crimes, Theft

Craigslist-Related Crimes | New Crimes in the Digital Age

Craigslist Crimes in TexasGone are the days of flipping through your local newspaper’s classified section and circling your favorite ads. These days, Craigslist is the new classifieds of Fort Worth and Dallas. It is the one stop shop source to find a new car, truck, job, furniture, garage sale, or even a love interest. With the rise of Craigslist (and other online forums), there has also been an increase in criminal activity ranging from online scams to fraud and theft. Police stings based on advertisements from Craigslist are also common. Police have seen such a meteoric rise in these “Craigslist related crimes”, that many departments have established “safe exchange locations where transactions can occur under the watchful eye of local law enforcement.

Whenever people meet to engage in a transaction, crime can occur. These crimes can take place anywhere, whether you are in an urban or rural area, in the parking lot of the local shopping center, or even on your own front porch. Craigslist is easily accessible, and is increasingly used to create opportunities for one party to take advantage of another. It is essential to be vigilant whenever meeting up with anyone from the Internet.

Craigslist Criminal Investigations | Fort Worth, Texas

With the advent of Craigslist, law enforcement agencies have seen a few specific areas of criminal activity increase rapidly. These investigations into alleged crimes often facilitated by Craigslist include:

  • Craigslist Robbery: Increasingly, people will post ads on craigslist looking to buy or sell an expensive item, such as a cell phone, and when the other party arrives take either the item or the money by force. Avoid being a target by meeting buyers or sellers at a “safe exchange” location set up by the police department.
  • Craigslist Prostitution: Craigslist is full of ads looking for love, and both men and woman can get caught up in activity they may not have even realized was criminal until too late. Craigslist is used to source potential targets, and can result in charges from soliciting sex with a minor to soliciting sex for pay. Police departments are increasingly using Craigslist to set up sting operations to catch people trying to engage in prostitution.
  • Craigslist Drug Charges: Police are seeing an increase in advertisements for illegal drugs posted on Craigslist using code words. Engaging in a dialogue with someone posting one of these ads could lead police to believe you are involved in drug dealing or drug trafficking through ads placed on Craigslist.

Defending Craigslist-Related Criminal Cases

Defense of Craigslist-related criminal charges can be a very complex proposition, requiring legal counsel experienced in these types of matters and the technology it involves. Forensic Computer Specialists and other experts may be necessary to the investigation and protecting your constitutional rights. Seek counsel from experienced criminal defense attorneys at Barnett Howard & Williams PLLC, former prosecutors with an in-depth understanding of the criminal justice system and its applications in today’s Internet-oriented society.

Contact Our Fort Worth Craigslist Crimes Defense Attorneys Today!

At Barnett Howard & Williams PLLC, our attorneys understand how to investigate and defend against complex computer-related criminal charges, including Craigslist-related charges. To schedule a free consultation, contact us at our offices in Fort Worth, Texas, at 817-993-9249.


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Feb 22
6
Bait Cars Backpage Entrapment Texas

Bait Cars, Backpage, and the Entrapment Defense

By | Prostitution, Theft

Bait Cars Backpage Entrapment TexasOur firm has represented many defendants in Fort Worth with cases stemming from a bait car or a Backpage ad. For those of you not familiar with either, let me explain Bait Cars and Backpage.

What is a Bait Car?

A Bait Car is vehicle owned by the police department and equipped with GPS devices and cameras. But, the car looks like any regular car on the street. The police typically place something valuable inside the Bait Car, such as a paint spray rig, and then they park the car (with the keys inside) on the side of the street in a low-income part of town. If someone tries to steal the bait car or the valuables inside, the GPS is triggered, the camera is activated, and the police are alerted. In most cases, the person does not get very far before a patrol car arrives to arrest them for theft.

What is Backpage?

I doubt I can fully explain what Backpage is or how it is used, but in the cases that we see, Backpage is a website (akin to Craigslist) where escorts and ladies of the night advertise their services. Potential Johns can browse the Backpage website to arrange an interlude of momentary love. The police have been using Backpage and arranging for a female officer to meet men at a local motel room posing as a prostitute. With backup officers waiting in the bathroom, the John is arrested for Solicitation of a Prostitute when they arrive to meet the woman/officer they contacted on Backpage.

Is it Entrapment for the Police to Use a Bait Car or to Advertise on Backpage?

We get this question in every Bait Car or Backpage case. To answer the question, we typically explain that fairness and equity are not the same as the legal defense of entrapment. Just because the police conduct doesn’t seem fair or because we think the police are “creating the crimes,” does not mean that it is entrapment.

Section 8.06 of the Texas Penal Code defines the affirmative defense of Entrapment:

“It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense.”

The Penal Code goes on to explain that: “Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.”

Therein lies the rub. By using a Bait Car and by advertising escort services on Backpage, the Fort Worth police are “merely affording a person an opportunity to commit an offense,” so under the law, entrapment would not apply to these situations. Don’t get me wrong, we hate Bait Cars and Backpage. We wish the police would use their time and resources toward real crimes, rather than “creating opportunities” for people to commit crimes. Why in the world would we want to create opportunities for people to commit crimes in the first place? That is similar to setting up a keg right outside the AA meeting with a sign for free beer.

Whether we like it or not, entrapment does not apply as an affirmative defense in these cases. Regardless, our attorneys still fight hard to get bait car and Backpage cases dismissed, reduced, or mitigated any way we can. Anecdotally, we’ve seen that a lot of prosecutors don’t like these cases any more than we do. Hopefully, we will see bait cars and Backpage go away soon, but until then, know that Entrapment won’t help you if you choose the wrong car or the wrong escort.


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Jan 15
2
Theft By Deception Texas

Justice of the Peace Convicted of Theft By Deception for Use of Airline Voucher

By | Theft

Theft By Deception?  County Official Uses Airline Flight Voucher (Purchased with Government Charge Card) to Buy a Plane Ticket for his Son.

Theft By Deception TexasIn Fernandez v. State, the Texas Court of Criminal Appeals considered the case of a Val Verde County Justice of the Peace who used an airline voucher for a flight that was unrelated to a government purpose.  The CCA discusses the offense of Theft by Deception in Texas, explaining what it means and what it doesn’t mean.  It is an interesting case because it seems so petty – the amount was only 300 dollars and some change.  Why didn’t the JP simply purchase a new ticket for his son?  Read more.

Travel Plans Arranged

James Fernandez was charged with “theft by deception” in 2012. Fernandez, serving as a Justice of the Peace in Val Verde County, wanted to travel to Orlando, Florida for a work-related conference in June of that year. After obtaining permission to travel to the conference and to use his government-issued credit card for airfare, Fernandez asked his office clerk to book the flight. The clerk made flight arrangements with Southwest Airlines.

Travel Plans Cancelled

Just before the conference, Fernandez became ill and cancelled his flight itinerary. Per Southwest Airlines’ refund policy, the airline issued a “refund-voucher” to Fernandez, in his name, valid for travel until February 2013. The refund-voucher was valued at $381.60, a dollar-for-dollar match to the amount originally paid for the ticket to Orlando.

In August, Fernandez asked his office clerk for the flight information from the cancelled Orlando trip. Once the clerk located the information, Fernandez told the clerk to give the flight reservation number to his son, Fernandez Jr.. The clerk complied.

Routine Audit Leads to an Investigation

During a routine review of the County’s flight budget, the County Auditor contacted Southwest, attempting to get a full refund of the flight. At that time the Auditor learned that the refund-voucher from the Orlando ticket had been used by Fernandez for a flight to Phoenix, Arizona in August. The auditor also learned that Phoenix flight incurred additional fees, fees that were not paid for by the county. Relying on Val Verde County’s policy that prohibits the use of county property for personal use, the auditor reported the transaction, triggering an investigation by the Attorney General.

Too Late to Repay, Fernandez Goes to Court

Soon after, Fernandez tried to pay for the airline voucher, but the auditor refused to accept his payment. Fernandez was charged with “theft by a public servant by way of deception.” At trial, Fernandez Jr. testified that his father had intended to repay the county, nevertheless, Fernandez was convicted—a conviction upheld by the Fourth Court of Appeals. Fernandez appealed to the Court of Criminal Appeals (“CCA”) for relief, arguing that State failed to prove he induced consent by way of deception at the time he misappropriated the government’s refund-voucher. The CCA must determine whether Fernandez committed “theft by deception” when he purchased online airfare for government-related travel with a government credit card, but canceled, using the refund-voucher for personal travel without “correcting the impression” that the refund-voucher would be used for future government-related travel.

What is Theft by Deception Under Texas Law?

Texas law defines theft as, “the unlawful appropriation of property with the intent to deprive the owner of the property.” Tex. Penal Code § 31.03(a). “Appropriation is unlawful if it is without the owner [of the property’s] effective consent.” Id. § 31.03(b)(1). Consent is defined as, “assent in fact, whether express or apparent,” and is “not effective if it is induced by deception or coercion.” Id. § 1.07(a)(11); §31.01(3)(A). Deception means, “failing to correct a false impression…fact that is likely to affect the judgment of another in the transaction, that the actor previously created…by words or conduct, and that the actor does not now believe to be true.” Id. § 31.01(1)(B). The burden of proof is on the State to prove “that the owner of the misappropriated property was induced to consent to its transfer because of a deceptive act of the defendant.” Geick v. State, 349 S.W.3d 542, 548 (Tex. Crim. App. 2011); Daugherty v. State, 387 S.W.3d 654, 659 (Tex. Crim. App. 2013).

The CCA Decides

Here, the CCA explains that “consent” is a key issue—that the initial consent Fernandez received from his office to use the government credit card to make the flight reservation was not the consent that is the basis of the conviction. Rather, it was the consent Fernandez obtained when he asked his clerk to send the information to his son, “because without the voucher number, Fernandez would have been unable to access the [information]” to book the flight to Phoenix. Further, the county, by way of its agent [the clerk], assented to the refund-voucher’s use because the agent gave the cancelled flight information to Fernandez and his son in August.

Moreover, the CCA says that the consent was obtained through deception. Fernandez established with his office that he would be attending a work-related conference in June, thus creating the impression that county funds were being used for a work-related purpose. Once the flight was cancelled, the refund-voucher that was issued is to be considered the county’s property, “just as the ticket to Orlando had been [considered county property].” Fernandez failed to correct the impression that he was using the ticket/refund-voucher for work-related travel, instead using the refund-voucher for personal travel without telling anyone in the Val Verde County’s business office. “By remaining silent, [Fernandez] left intact the impression he created…that the [refund-voucher] would be used for county-approved travel.” The CCA affirmed the decisions rendered by the trial and appeals courts.

Judge Johnson filed a concurring opinion that simplified the majority’s opinion. “When [Fernandez] failed to…tell the county….that he had not used the original ticket…and [did not] surrender the voucher, [Fernandez] failed to correct the impression of appropriate travel on county business that he had previously created.” This alone was the deception that is required to support the conviction.

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Barnett Howard & Williams PLLC is a criminal defense law firm in Fort Worth, Texas.  Our criminal defense attorneys handle all felony and misdemeanor offenses in Tarrant County and surrounding areas.  For more information about our attorneys, visit our Firm Profile page.

Sep 09
1
Fort Worth, Texas Theft Attorneys

How Jerry Seinfeld Violated Texas Theft Law

By | Theft

Obscure Texas Laws | Fort Worth Criminal Defense Attorneys

Fort Worth, Texas Theft AttorneysNo, I’m not talking about a Good Samaritan Law, but Texas does have some obscure laws on the books that you might not suspect.  We are hoping to bring some of them to your attention.  For the first obscure Texas law, we look to one of the most successful television shows in history.

For all of the Seinfeld fans out there, you probably remember the episode where Kramer tries to entice Jerry to have cable illegally installed by two Russians.  Well, Jerry’s actions would be a Class C misdemeanor Theft offense here in Texas punishable by a fine up to $500.

Section 31.12 – Theft of or Tampering With Multichannel Video or Information

Under this law:

[a] person commits an offense if, without the authorization of the multichannel video or information services provider, the person intentionally or knowingly makes or maintains a connection, whether physically, electrically, electronically, or inductively, to a television set, videotape recorder, or other receiver attached to a multichannel video or information system.

Based on his actions (or inability to stop Kramer), Jerry could be arrested and issued a Class C criminal citation.  Like all penal statutes, there is much more to it than that.  If you’re curious about whether you may have violated this one in the past (long before the statute of limitations ran out, of course), see the full text of the Texas Theft Statute and look for Section 31.12.

Contact Fort Worth Theft Attorneys

If you or a loved one are charged with any theft offense in Texas, don’t call Jacky Chiles.  Contact the experienced (and non-fictional) criminal defense attorneys at Barnett Howard & Williams PLLC by calling (817) 993-9249.

Aug 26
0
Tarrant County Shoplifting Charges

Retailers Demanding Money From Shoplifters for Theft

By | Theft

Why did I get a letter from Wal-Mart demanding that I pay them $350?

Tarrant County Shoplifting ChargesWhen a person is arrested for theft or shoplifting in Fort Worth and comes to consult with one of our Fort Worth criminal defense attorneys, one of the most common issues we’re asked about is what to do about a civil demand letter.

What is a civil demand letter?

When a person is arrested for shoplifting, many times the larger retailers will follow up the arrest with a civil demand letter. These letters demand payment of a civil penalty to the retailer. Typically, these letters will be sent directly from the store, a law firm or debt collector and they usually ask for between $200.00 – $400.00 (regardless of the amount that was stolen). The key to remember is that this is civil demand and is separate from the criminal case. What happens with the civil demand letter will have no bearing on the criminal case.

Should I pay Wal-Mart on the demand letter?

Your options when you receive a dmeand letter after an arrest for theft are:

  1. Pay the penalty if you want to stop the letters from being sent, or
  2. Don’t pay and force them to sue if they choose to.

Technically, the amount that the store is demanding is not owed but is something the store feels like it could sue for. What’s important to remember is that for a store to sue a shoplifter for these types of damages, they would have to pursue their cause of action under the Texas Theft Liability Act.

What if the store recovered the property on the scene?

Under this act, a person may be liable for damages resulting from the theft. But, the act specifically states that a store may only recover the amount of actual damages sustained not to exceed $1000.00. The key term here is “actual damages.” In the majority of shoplifting cases, the property being stolen is recovered. In that case, there would be no “actual damages” because the store has not suffered any true loss. If so, the store would not be able to prove that they’ve suffered any actual damages and would not be able to recover a judgment.

So, whether or not they would be successful in a lawsuit is one issue. Another is whether the retailer feels like expending the fees to bring a suit is even worth it if even the most they could recover would be $1000.00. I have yet to have a client (and have yet to speak with any other attorneys with clients) who has received one of these letters being actually sued by one of these retailers – regardless of whether they pay or not.

Ultimately, whether you pay a retailer after receiving one of these civil demand letters is up to you. But, don’t expect the trial of the century if you don’t.

Contact our Fort Worth Theft Defense Attorneys if You Have Received a Civil Demand Letter

Our criminal defense attorneys, with offices in Fort Worth, Keller, and Grapevine, are experienced in all types of theft cases in Tarrant County. Contact us today for a FREE consultation at (817) 993-9249.